Monday, April 5, 2010

"Haven't We All?": My Foray Into Copyright Infringement

I had dinner with Brit Hub 1.0, who for the purposes of this post will be known as "my Intellectual Property attorney." I said to him, "I violated someone's copyright this week," and he responded, "Haven't we all."

I gaped at him. This is a man I know for a fact has violated none of the Ten Commandments, and that's a hard claim to make. And he's a patent attorney -- what's he doing violating copyrights?

"It's hard not to," he explained. He pointed to some printouts of articles on the Internet he'd brought with him to dinner. "Like those. I don't know if I had tacit permission to copy those." He shrugged.

Now, there's no way Brit Hub 1.0 is cavalier about anyone's intellectual property rights, so I explained my situation. I told him that I'd written a 5,000 word piece of "fan fiction" for The Uncrushable Jersey Dress, a website devoted to reviewing and discussing the books of Betty Neels, a now-deceased author of Mills & Boon romances. (By the way, that fanfic is up and you can read it here.) I explained that I'd used the names of the principal characters, the basic plot and some small amounts of dialogue from one of Neels's romances, Fate is Remarkable. (I'm prepared to defend the use of the dialogue as permitted under the "fair use" doctrine; the rest of it is dodgy, at the very least.)

BH 1.0 isn't so sure I've violated the copyright in the book, Fate is Remarkable. According to him, federal courts held that Alice Randall, the author of The Wind Done Gone, didn't violate the copyright when she rewrote Gone With the Wind entirely from the black characters' perspective. The court held that Randall's take on the story was sufficiently original. By contrast, the guy who tried to write a sequel to The Catcher in the Rye had violated J.D. Salinger's copyright.

So -- which is my fan fiction: infringing or sufficiently original? What I did was to rewrite the same romance, but from the hero's perspective. Sufficiently original? I dunno. At least with the The Wind Done Gone case plausibly on my side, I have what's known in the law as "a straight face" argument, meaning one you can make with a straight face and not feel embarrassed or ashamed or crack up laughing.

I'm not worried about getting hit with a judgment for the statutory damages under US copyright law. (In reality, the most that would happen would be that I would get a cease & desist letter, and my fan fiction would be removed as if it had never happened. So go read it now!) Here's four reasons why I'm unlikely to be hit with a lawsuit:

I'm not making any money off my fan fiction. I'm not selling it, and there isn't much of a revenue stream for the nice Bettys at the The Uncrushable Jersey Dress.

I'm not cheating the copyright holder(s) out of any revenue. If anything, the blog, and my contribution to the blog, may induce a tiny incremental increase in sales of Betty Neels books, and specifically Fate is Remarkable, the one I'm infringing.

The author is deceased. Yes, the copyright survives, and in theory all the author's rights and interests are passed along with the copyright. But there is an undeniable interest the author has in her characters, her "babies." Betty Neels could have come along and said, "I don't like that you're writing about my characters," and that would be a strong moral argument in favor of my ceasing & desisting. For her heir(s) to come along and say the same thing may be a valid legal argument under US copyright law, but the moral argument is diluted when the heir(s) and I are all in the same position vis a vis the original characters: they're not our babies.

My fan fiction respects the values that Betty Neels included in her books. She's famous for keeping her characters out of the bedroom before marriage, and keeping the bedroom door shut after marriage. If I'd written anything racy, that might have made my fan fiction more original, but it would have violated the tone and voice of Betty Neels' writing.

I'm proud of my little foray into fan fiction -- it's not particularly well written (try condensing the events of an 80,000 word novel into 5,000 words and see how much subtlety and texture you can include!), but it does exactly what I wanted it to do. It expresses my vision of how the other side of the romance may have gone.

I'd like to think Betty Neels would have been amused (or perhaps bemused) by my tribute -- but if it had upset her, I'd have taken it down. Because, while I'm willing to "borrow" the names and plot to write that tribute, I would never argue that I was entitled to do so, or that no infringement took place.

The are-you-making-any-money rule is a good one, except it doesn't exactly hold true any more. For example, as an art historian I don't get paid money to publish in most journals. This is because I'm supposed to be publishing in the spirit of scholarly sharing, blah blah blah. BUT I still have to pay copyright on any images I use in the article. Like WTF?

I agree with Brit Hub 1.0 that it's pretty much impossible not to break copyright, especially if you're engaged in something creative. You just have to hope no one notices, or if they do notice they don't care. Could JK Rowling throw a royal fit and demand all the HP fanfic sites or wizard rock songs on the intrawebs be taken down? Probably; and she'd probably be able to afford a lawyer good enough to win. But she doesn't, and so life goes on.

I just read your "Fate is Remarkable" fanfic, and I so so wish you would write more. You aren't doing anything wrong letting us see the other side of a Betty Neels character. I would love it if you wrote many many more...maybe even with a teeny tiny foray into the honeymoon as well. I know that wasn't betty's thing, and I admire that. But its hard to read a whole romance and not see even the tiniest bit of the other side of things!

In case you don't already know, there's a Facebook group (just search for Uncrushable at Facebook and ask to join) for fans of Betty Neels. I'm currently reading the books in chronological order, and commenting on them. Now, if you want more Betty Neels fan fiction, that will have to wait until I'm done with Betty from the Beginning. If you want more of my writing, I've got three novels and a novella out now.

About Me

In The Blackjack Quartet, I write about lawyers, judges, law students, paralegals…an entire fictional Philadelphia legal community, in fact.
In addition to writing, I'm completing my MFA from Stonecoast, one of only two programs in the country that acknowledge romance novels exist, let alone comprise a wildly popular fiction genre. Any time left over is spent with my second British husband (what can I say? I have a type), two cats, and a dog.